Consultation Paper on the General Law of the Landlord and Tenant

“bilateral” in nature, ie they are regarded as mutually dependent uponeach other.1.14 The most significant aspect of the bilateral nature ofcontractual obligations is that it leads to the principle that if one partybreaches an obligation which is regarded as fundamental, or engagesin what amounts to a repudiation of the contract, the other party maytreat this as excusing further performance of the contract, ie, withoutresort to court action the latter may act as if discharged from thecontract. 52 Yet according to traditional landlord and tenant law theparties’ obligations are independent, so that, for example, a breach bythe landlord of repairing obligations does not discharge the tenantfrom the obligation to pay rent. 53 Thus it was held in 1996 that atenant could not withhold his rent because of a breach of obligationby the landlord. 54 This is a matter which is taken up in a later chapter,in the context of enforcement of obligations. 55 In passing it may benoted that the English courts, without the benefit of Deasy’s Act, haverecently been taking the view that a lease or tenancy should beregarded as essentially a contractual relationship in this respect. 56Thus they have been prepared to hold that a tenant may “disclaim orrescind” (ie act as discharged from) the tenancy where the landlordsufficiently derogates from the grant, or is guilty of a sufficientlyserious breach of obligation, as to amount to a repudiation of thetenancy. 57 It remains to be seen whether the Irish courts will followthis approach. 5852535455565758See Clark op cit at 427; McDermott op cit at 1069.Corkery v Stack (1947) 82 ILTR 60.Riordan v Carroll [1996] 2 ILRM 263, 275 (per Kinlen J).Paragraph 10.16 below.Thus, since one cannot enter into a contract with oneself, it has been heldthat a lease to oneself renders the covenants unenforceable (see Rye v Rye[1962] AC 496 at 513 per Lord Denning). However, a valid lease may begranted to a nominee: Ingram v IRC [1999] 2 WLR 90.Hussein v Mehlman [1992] 2 EGLR 97 (residential tenancy); CharteredTrust plc v Davies [1997] 2 EGLR 83, cf Nynehead Developments Ltd vRH Fibreboard Containers Ltd [1999] 1 EGLR 7 (both commercialleases).Note that the specific provision in section 89 of the Ontario Landlord andTenant Act, RSO 1980, c 232 (“Subject to this Part, the common law rulesrespecting the effect of the breach of a covenant by one party to a contract15